FRASER JOHN ELLIS v THE KING [2023] SASCA 28

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMART) [2022] SAMC 104 Applicant: FRASER JOHN ELLIS Counsel: MR K HANDSHIN KC WITH MR S JOYCE - Solicitor: TINDALL GASK BENTLEY LAWYERS Respondent: THE KING Counsel: MR M WAIT SC WITH MR R WILLIAMS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 22/12/2022 File No/s: SCCRM-22-345 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ELLIS v THE KING [2023] SASCA 28 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Nicholson) 23 March 2023 CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - GENERAL MATTERS - PRIVILEGES - PRIVILEGE OF PARLIAMENTARY DEBATES AND PROCEEDINGS - STATES CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE Application for permission to appeal against a refusal by a magistrate to stay criminal proceedings on the basis that the proceedings constituted an abuse of process. The applicant is charged on Information with 23 counts of deception, contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA). He is a member of the House of Assembly. His residential address has been, at all relevant times, in or around Kadina, South Australia, which is over 100 km from Adelaide by road. At the relevant times, a ‘Country Member’s Accommodation Allowance’ (‘allowance’) was payable to a member of either House of Parliament, where: • the member’s usual place of residence was more than 75 km by road from the General Post Office at Adelaide (by the most direct route); and -- 1 of 19 -- • the member was required to spend the nights claimed in Adelaide for parliamentary or other purposes. Each charge of deception corresponds to a claim form submitted by the applicant for payment of the allowance and to his receipt of that allowance, in accordance with the dates stated on the claim forms. The respondent alleges that the claim in respect of each date particularised was falsely made, and that the applicant dishonestly benefited himself in the sum particularised in each case. On 21 July 2020, the Speaker of the House of Assembly tabled in the House a bundle of papers that included copies of the claim forms submitted by the applicant (the Tabled Documents). These were printed by the Corporate Services section of the House of Assembly from its scanned records held on the electronic document records management system, to which redactions were then made by hand. The applicant had originally submitted the claim forms to this section. The prosecution proposed to tender at trial copies of the claim forms (the KLN1 documents). The KLN1 documents were unredacted, date-stamped, hard copy claim forms that Corporate Services had printed prior to scanning and storing the scanned images. They were held by the Finance Section of the Parliamentary Joint Service Division. The Finance Section had received the KLN1 documents prior to the tabling of the copies of the forms by the Speaker The magistrate held that the KLN1 documents were brought into existence for administrative purposes unconnected with the proceedings of Parliament, such that no question of parliamentary privilege arose with respect to them. Further, the tabling and subsequent publication of the Tabled Documents did not engage parliamentary privilege in any event. The essential issues raised by the Notice of Appeal are: • whether the acts of tabling and publication of the claim forms caused them to be appropriated into ‘proceedings of Parliament’ of the House of Assembly (Ground 1); and • whether parliamentary privilege attached to the KLN1 documents either: o by reason of them constituting the ‘original’ documents together with the documents that were tabled (Ground 2); or o in the alternative, because the tabling of copies of the claim forms, in the circumstances of this case, had the effect of conferring parliamentary privilege on copies made for different purposes or on the original (Ground 2A). The magistrate considered it unnecessary to decide whether the application should be refused on the basis further submitted by the prosecution that, even if the claim forms were subject to parliamentary privilege, there was other material capable of establishing the charges. The respondent pursues that argument on this appeal by a Notice of Alternative Contention. Held (by the Court), granting permission but dismissing the appeal and the Notice of Alternative Contention: 1. The KLN1 documents do not attract parliamentary privilege. Their creation and storage were not incidental to transacting the business of a House or of a committee. 2. Assuming, without deciding, that the tabling of the Tabled Documents caused those copies to be privileged, that did not have the effect of retroactively cloaking the KLN1 documents with privilege. 3. It is of no consequence that the KLN1 documents remain in the custody of the administrative services of the Parliament. Bill of Rights 1689 (UK) art 9; Constitution Act 1934 (SA) s 38; Criminal Law Consolidation Act 1935 (SA) s 139; Parliamentary Privileges Act 1987 (Cth) ss 9, 16, referred to. Cornwall & Ors v Rowan (2004) 90 SASR 269; Director of Public Prosecutions v Ellis, Fraser John [2022] SAMC 104; Laurance v Katter (1996) 141 ALR 447; O’Chee v Rowley (1997) 150 ALR 199; -- 2 of 19 -- Prebble v Television New Zealand Ltd [1995] 1 AC 321; R (Miller) v Prime Minister [2019] UKSC 41, [2019] 3 WLR 589; R v Chaytor & Ors [2011] 1 AC 684; R v Clark [2023] SASCA 15; R v McGee (2008) 102 SASR 318; R v Murphy (1986) 5 NSWLR 18; Stewart v Reynolds (2009) 76 NSWLR 99; Szwarcbord & Anor v Gallop & Anor (2002) 167 FLR 262; United States v Brewster (1972) 408 US 501, considered. -- 3 of 19 -- -- 4 of 19 -- ELLIS v THE KING [2023] SASCA 28 Court of Appeal – Criminal: Livesey P, Bleby JA and Nicholson AJA 1 THE COURT: The applicant is charged on Information with 23 counts of deception, contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA). This is an appeal against a refusal by a magistrate to stay the charges as constituting an abuse of process. Background The Country Member’s Accommodation Allowance 2 The applicant is a member of the House of Assembly for the district of Narungga, which comprises the whole of the Yorke Peninsula and part of the mid-north. His residential address has been, at all relevant times, in or around Kadina, South Australia, which is well over 100 km from Adelaide by road. 3 At the relevant times, a ‘Country Member’s Accommodation Allowance’ (‘allowance’) was payable to a member of either House of Parliament, where:  the member’s usual place of residence was more than 75 km by road from the General Post Office at Adelaide (by the most direct route); and  the member was required to spend the nights claimed in Adelaide for parliamentary or other purposes. 4 The procedure by which a claim is made is as follows. A member of the House of Assembly submits a claim form to the Corporate Services section of the House of Assembly. The Corporate Services section is comprised of administrative staff, some of whom act on behalf of the Clerk of Assembly. Where a claim form is submitted by email, an officer of Corporate Services prints a hard copy and affixes a date stamp. In the process of processing and approving a claim, Corporate Services generates a further form, in hard copy, described as an ‘AR20’. 5 Once the claim is approved, the claim form and the AR20 are scanned, with the consequent electronic copies being stored in the Electronic Document Records Management System (EDRMS). The stamped hard copies of each approved claim form and the corresponding AR20 in each case are stapled together. Those hard copy documents are then forwarded to the Finance Section of the Parliamentary Joint Service Division for payment to be made to the member of Parliament. Corporate Services does not retain any hard copy. It is able to access and print the electronic copies stored on the EDRMS. The charges 6 Each charge corresponds to a claim form submitted by the applicant for payment of the allowance and to his receipt of that allowance, in accordance with the dates stated on the claim forms. The respondent alleges that the claim in respect -- 5 of 19 -- [2023] SASCA 28 The Court 2 of each date particularised was falsely made, and that the applicant dishonestly benefited himself in the sum particularised in each case. 7 It is not necessary to set out all counts in the Information. For present purposes, Count 1 is representative of the language of each charge of deception. It reads as follows: 1. Between the 13th day of May 2018 and the 19th day of May 2018, at Adelaide and other places in the said State, deceived another, being the person authorised to approve the payment of the Country Members Accommodation Allowance for 12, 13 and 16 April 2018, and by so, dishonestly benefitted himself in the sum of $675. Section 139 of the Criminal Law Consolidation Act 1935. This is a basic offence. This is a minor indictable offence. The application for a stay 8 The application for a stay of the charges on the grounds of abuse of process was based on the proposition that the claim forms the prosecution proposes to tender at trial are subject to parliamentary privilege. It followed, in the applicant’s submission, that the truth of any representations alleged to have been made by the applicant in the claim forms could not be challenged in a court or other place outside of Parliament, with the result that prosecution is foredoomed to fail. 9 On 10 August 2022, the magistrate refused the application. He noted that the prosecution proposed to tender copies of the claim forms comprising the bundle of documents attached to an affidavit of Kent Leslie Nelson dated 17 November 2020 as annexure ‘KLN1’ (‘the KLN1 documents’).1 These copies were obtained separately from the Finance Section of the Parliamentary Joint Service Division. He held:  the KLN1 documents were brought into existence for administrative purposes unconnected with the proceedings of Parliament, such that no question of parliamentary privilege arose with respect to them. The fact that another copy of the claim forms was subsequently tabled in Parliament for a different purpose did not alter that conclusion; and  in any event, the tabling and subsequent publication of the claim forms did not engage parliamentary privilege. 10 The Notice of Appeal articulates seven grounds of appeal. The essential issues raised by the Notice of Appeal are: 1 Kent Leslie Nelson is the Chief Finance Officer of the Parliamentary Joint Services Division of the South Australian Parliament. -- 6 of 19 -- [2023] SASCA 28 The Court 3  whether the acts of tabling and publication of the claim forms caused them to be appropriated into ‘proceedings of Parliament’ of the House of Assembly (Ground 1); and  whether parliamentary privileged attached to the KLN1 documents either: a. by reason of them constituting the ‘original’ documents together with the documents that were tabled (Ground 2); or b. in the alternative, because the tabling of copies of the claim forms, in the circumstances of this case, had the effect of conferring parliamentary privilege on copies made for different purposes or on the original (Ground 2A). 11 The other grounds constitute complaints of reasoning relevant to the magistrate’s conclusions on the above matters. As articulated, they devolve into submissions. To the extent that they were pursued by senior counsel at the hearing, they can be addressed as such, in context, insofar as is necessary. The essential question for this Court, on the application for permission to appeal against the refusal to grant a stay, is whether there remain copies of the claim forms that are not subject to parliamentary privilege and are thereby able to be tendered at trial. 12 The magistrate considered it unnecessary to decide whether the application should be refused on the basis further submitted by the prosecution that, even if the claim forms were subject to parliamentary privilege, there was other material capable of establishing the charges. The respondent pursues that argument on this appeal by a Notice of Alternative Contention. The claim of parliamentary privilege 13 Central to the applicant’s argument before the magistrate were events occurring in the House of Assembly in June and July 2020. It is not necessary to set out that history in detail here.2 A short summary follows. 14 On 30 June 2020 and 1 July 2020, the then Leader of the Opposition, the Honourable Peter Malinauskas MP, gave formal notice on the floor of the House that he would move that the House of Assembly require the Speaker to table, and make publicly available, all allowance claim forms submitted between 20 March 2010 and 30 June 2020. 15 On 21 July 2020, the Speaker of the House of Assembly tabled numerous papers. One bundle of papers was ‘House of Assembly Country Members’ Accommodation Allowance Claim Forms: 1 March 2010-30 June 2020’. This bundle included the applicant’s claim forms for the allowance. The Speaker tabled these forms without the Leader of the Opposition’s motion needing to be moved and voted upon. The forms had been printed by Corporate Services from its 2 The magistrate recorded that history in detail: see Director of Public Prosecutions v Ellis, Fraser John [2022] SAMC 104 at [16]. -- 7 of 19 -- [2023] SASCA 28 The Court 4 scanned records held on the EDRMS. They were redacted, so that the precise details of the members’ addresses were not disclosed. 16 Copies of the tabled claim forms were published on the parliamentary website and made available to the public. These copies bore the stamp of the House of Assembly, thereby indicating that they were copies of tabled documents. 17 The Speaker made a statement about the claim forms, which included the following:3 For those who choose to peruse the claim forms, note that there are a number of recently submitted claim forms. I can inform the house that I have included the resubmitted forms together with the original claim forms into the compilation of all claim forms received in the interests of transparency. I would like to remind members of my ruling made in the house on 30 June wherein I indicated that questions asked of members regarding claims for country members’ accommodation allowance are out of order. I went on to quote Speaker Such … to the effect: I remind members to have a look at standing order 96 which precludes members from asking a question of a member unless they hold a position such as minister, chair of a committee, or something like that. Public business is not the same as public interest. I will be holding the line on this rule should questions be asked on country members’ accommodation allowance claims. 18 Following this statement, the Leader of the Opposition asked a question of the Premier, ‘Does the Premier know the identities of the country MPs who have wrongfully claimed the country members’ accommodation allowance?’4 He followed this up with a further question to the Premier, ‘Has any member of the Premier’s cabinet wrongly claimed the country members’ allowance?’5 Hansard then records further questions regarding claims made by the Leader of Government Business, the Minister for Primary Industries, members of the Cabinet, the Minister for Transport and Infrastructure and ‘Ministers’.6 The magistrate’s conclusions 19 The magistrate dismissed the application for a stay on the basis that even on the assumption that the copies of the claim forms that were tabled were subject to parliamentary privilege, the privilege did not extend to the KLN1 documents. It is convenient to set out his summarised reasons for that conclusion:7  The claim forms are plainly documents which have been brought into existence for an administrative purpose unconnected with the proceedings of parliament and as 3 Hansard, Tuesday, 21 July 2020, p 2038 (HA). 4 Hansard, Tuesday, 21 July 2020, p 2039 (HA). 5 Hansard, Tuesday, 21 July 2020, p 2040 (HA). 6 Hansard, Tuesday, 21 July 2020, pp 2042, 2043, 2049, 2051, 2052, 2053, 2056 (HA). 7 [2022] SAMC 104 at [46]. -- 8 of 19 -- [2023] SASCA 28 The Court 5 such are not of the type which by their nature could be argued to form a part of the ‘proceedings of parliament’;  I am not persuaded that the documents ‘KLN1’ and the documents tabled are other than two different copies made at separate times for different purposes. Neither in my view satisfies the description ‘the original’ of the document;  The tabling of the copy claim form arguably may confer parliamentary privilege on that copy of the document, but I am not persuaded that it would have the effect of conferring such privilege on other copies made for different purposes or indeed on the original. In my conclusion the tabling of the claim forms, at the most, involves a repetition of a statement already made;  By its particulars, and as expressly stated, the prosecution case does not seek to impugn the words or conduct of Parliament. Indeed what has occurred in Parliament is acknowledged by the prosecution as irrelevant to the prosecution case. All elements of the offences alleged including the representation made, are alleged to have been completed prior to the tabling of the documents;  Consequently, the course proposed by the prosecution does not involve any curtailment to the right of free speech enjoyed by parliamentarians;  I agree with the submission … that the only effect of the director’s reliance upon documents ‘KLN1’ would be to ‘inhibit the making of dishonest claims for parliamentary allowance’, a matter clearly in the public interest. I also agree with the submission made that if, as urged by the accused, parliamentary privilege was to apply in such circumstances, it would produce an incongruous outcome with a tendency to adversely affect the integrity of Parliament. 20 This was sufficient to dispose of the application. The magistrate continued, however, and addressed whether the tabled documents themselves attracted parliamentary privilege. He concluded that they did not, for the following reasons:8  The claim forms were plainly brought into existence solely for an administrative purpose. There was obviously never any intention on the author’s part that the statements should be laid before the House;  Once tabled, the accused’s claim forms and the statements made therein were the subject of no question or debate. The only arguable exception is the general question asked by the Leader of the Opposition immediately following their tender;  It is true that the tabling of the claim forms followed questions directed towards parliamentary allowances and following the Leader of the Opposition, Mr Malinauskas, foreshadowing a motion to call for the tabling of the claim forms. However, at the time of the tabling the Speaker made clear that he would not permit ‘questions asked of members regarding claims for country members’ allowances’, thereby effectively precluding any debate regarding any individual claim forms including the accused’s… It is also important to remember the nature of the documents. It is not sensible to suggest, in my view, that the assertions made in the claim forms have been incorporated into the business of parliament so that to challenge their content would impinge on the right to freedom of speech in parliament. The claim forms never formed any part of any speech made by or on 8 [2022] SAMC 104 at [67]. -- 9 of 19 -- [2023] SASCA 28 The Court 6 behalf of the accused in the course of parliamentary debate, nor formed any intended submission to Parliament (such as might be made by a committee);  Further, to accord parliamentary privilege to the documents would, in my view, produce an incongruous outcome. In the context of a debate concerning parliamentary allowances, and following a call for the tabling of such documents, apparently for reasons of public transparency, it would represent an incongruous outcome if the representations made in those forms could not later be challenged as untruthful. 21 The magistrate did not consider it necessary to consider the prosecution’s alternative argument that even if all copies of the claim forms were privileged, the application for a stay should be refused as there was sufficient evidence in any event to support the charges. The application for permission to appeal 22 On the hearing of the application for permission to appeal, the Solicitor-General did not seek to defend the conclusion that the copies that had been tabled did not attract parliamentary privilege. Indeed, he submitted that they almost certainly were privileged. In this regard, he distinguished between the documents actually tabled and subsequent copies of those tabled documents. He submitted that it had been the prosecution submission before the magistrate, and remained the submission before this Court, that copies of the documents tabled were not privileged. However, he submitted that the debate before the magistrate and then the magistrate’s reasons tended to merge the position of the copies actually tabled and copies derived from those tabled documents. 23 The KLN1 documents were neither of these. For the purposes of this application, it is important to distinguish between:  the KLN1 documents, being unredacted copies of the date-stamped, hard copy claim forms held by the Finance Section of the Parliamentary Joint Service Division. The Finance Section had received these forms prior to the tabling of copies of the forms by the Speaker on 21 July 2020;  copies of the claim forms that were created for the purpose of tabling in Parliament and then so tabled on 21 July 2020 (‘Tabled Documents’). The Tabled Documents were not copies of the KLN1 documents. They were printed from the EDRMS by an officer of Corporate Services, who then redacted, by hand, the home addresses on these printed copies; and  copies of the Tabled Documents (‘Derived Documents’). 24 The prosecution proposes to tender only the KLN1 documents at trial. 25 The magistrate dismissed the application for a stay on the basis that, whatever the status of the Tabled Documents, the KLN1 documents did not attract parliamentary privilege. For the reasons that follow, that conclusion was correct. -- 10 of 19 -- [2023] SASCA 28 The Court 7 The nature of the power to stay criminal proceedings 26 The principles governing an application to grant a stay of charges were not in dispute. In R v Clark, this Court summarised the nature of the power of the court to grant a stay of criminal proceedings:9 When exercising the power to grant a stay, it is important that the Court not interfere with the decision of the Director to institute proceedings, nor ‘begin to assume the role of a supervisory authority in relation to those decisions’.10 Accordingly, the test for a stay ‘must be a stringent one’.11 A trial is not to be precluded merely because the trial judge takes the view that the ‘case is a weak one, or even because in the opinion of the trial judge the case is likely to fail’.12 (Footnotes in original) 27 It follows that even if all copies of the claim forms are privileged, it is a separate question whether the proceedings should be stayed. That contingency is the subject of the respondent’s Notice of Alternative Contention, which the magistrate did not need to determine, given his primary conclusion that a stay should not be ordered. Parliamentary privilege: ‘proceedings in Parliament’ and the Tabled Documents 28 Section 38 of the Constitution Act 1934 (SA) provides: 38—Privileges, powers etc of Council and Assembly The privileges, immunities, and powers of the Legislative Council and House of Assembly respectively, and of the committees and members thereof respectively, shall be the same as but no greater than those which on the twenty-fourth day of October, 1856, were held, enjoyed, and exercised by the House of Commons and by the committees and members thereof, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise. 29 In effect, s 38 applies to South Australia the law expressed in article 9 of the Bill of Rights 1689 (UK).13 That provides: That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. 30 The essential operation of the privilege was not in contest. Rather, argument was joined in respect of the applicant’s submission as to what constituted a necessary and logical application of the privilege in the circumstances of the present case. To explain and evaluate that submission, it is first necessary to canvass the accepted logic and operation of the privilege. In R v Chaytor & Ors, 9 [2023] SASCA 15 at [21]. 10 R v McGee (2008) 102 SASR 318 at [87] (Doyle CJ). 11 R v McGee (2008) 102 SASR 318 at [87] (Doyle CJ). 12 R v McGee (2008) 102 SASR 318 at [87] (Doyle CJ). 13 Cornwall & Ors v Rowan (2004) 90 SASR 269 at [223]. -- 11 of 19 -- [2023] SASCA 28 The Court 8 the United Kingdom Supreme Court observed that various authorities supported the proposition:14 … that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider that nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament. 31 This is effectively a descriptive statement of what may fall within the concept of parliamentary proceedings. Ultimately, it is for the court to establish the scope of parliamentary privilege in a given case. In R (Miller) v Prime Minister,15 the United Kingdom Supreme Court quoted, with apparent approval, Erskine May, Parliamentary Practice:16 The primary meaning of proceedings, as a technical Parliamentary term, which it had at least as early as the 17th century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of article 9. An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. 32 Section 16 of the Parliamentary Privileges Act 1987 (Cth) was enacted in response to the decision of the New South Wales Supreme Court in R v Murphy.17 It does not define the scope of the privilege enacted by s 38 of the Constitution Act (SA). However, s 16(3) has been held to be declaratory of the scope of the privilege in court proceedings.18 Section 16(2) defines ‘proceedings in Parliament’ for the purposes of the application of article 9 by that Commonwealth Act. The section in its entirety reads: 16 Parliamentary privilege in court proceedings (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in 14 [2011] 1 AC 684 at [47]. 15 [2019] UKSC 41; [2019] 3 WLR 589. 16 Erskine May, Parliamentary Practice, 25th ed (2019), para 13.12, quoted in R (Miller) v Prime Minister [2019] UKSC 41; [2019] 3 WLR 589 at [67]. 17 (1986) 5 NSWLR 18 (Hunt J). See Laurance v Katter (1996) 141 ALR 447 at 489; O’Chee v Rowley (1997) 150 ALR 199 at 207. 18 Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333 (PC). -- 12 of 19 -- [2023] SASCA 28 The Court 9 the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. (4) A court or tribunal shall not: (a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or (b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence; unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence. (5) In relation to proceedings in a court or tribunal so far as they relate to: (a) a question arising under section 57 of the Constitution; or (b) the interpretation of an Act; neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or -- 13 of 19 -- [2023] SASCA 28 The Court 10 with the authority of a House or a committee or the making of statements, submissions or comments based on that record. (6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates. (7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act. 33 Much of the Australian jurisprudence concerns the application of this section. While the section does not apply to the South Australian Parliament, the applicant submitted that what the courts have said about the scope of s 16 can assist with an understanding of the scope of article 9. Specifically, he submitted that the phrase in s 16(2), ‘all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House’ reflected the scope of article 9. The history leading up to the tabling of the Tabled Documents by the Speaker demonstrated, in his submission, that the act of tabling was sufficient to attract the privilege to the Tabled Documents. The Tabled Documents 34 As identified above, the respondent does not propose to rely on the Tabled Documents at trial. The Solicitor-General conceded that the Tabled Documents were most likely privileged. That would not absolve this Court from determining whether they are privileged, were it necessary to do so. For the reasons appearing below, it is not necessary to do so. However, the following brief observations demonstrate the force of the argument that the Tabled Documents do attract parliamentary privilege. 35 The applicant accepted that there are categories of documents in respect of which the mere act of tabling will not engage the privilege. He referred, by way of example, to the situation where a Minister tables a report of a statutory officer when required to do so.19 He submitted that the present situation is not of that kind, as the Speaker tabled the documents of his own motion, following a motion by the Leader of the Opposition. That is to say, the tabling occurred as a consequence of, and in response to, the transacting of the business of the House. 36 In those circumstances, we do not think that the lack of debate following the tabling would determine whether privilege is thereby attracted, or even be particularly influential. In Cornwall v Rowan & Ors,20 a Cabinet Minister, Dr Cornwall, published to Cabinet a report of a review into women’s shelters in South Australia, for the purpose of Cabinet approving the tabling of the report in 19 See, e.g., Stewart v Reynolds (2009) 76 NSWLR 99 at [121]-[124]. 20 (2004) 90 SASR 269. -- 14 of 19 -- [2023] SASCA 28 The Court 11 Parliament. The report was then tabled. In the context of considering whether that act of publication was capable of exposing Dr Cornwall to tortious liability, the Full Court identified the operation of s 38 and its incorporation of article 9, saying:21 That freedom obviously includes anything said or done by Dr Cornwall in Parliament, such as the tabling of the Report and any necessary publication incidental to such publication: Holding v Jennings [1979] VR 289. The publication of the Report in the Legislative Council was therefore subject to absolute privilege. It could not be the subject of any misfeasance in public office by Dr Cornwall. 37 It is not necessary to delve into the applicant’s arguments further. For the reasons that follow, it is sufficient to proceed on the assumption, not contested by the respondent, that the Tabled Documents attract the privilege, by reason of the Speaker tabling them in the House of Assembly in the circumstances that he did. On that assumption, they would not be able to be relied on in criminal proceedings to establish the representations alleged to have been made by the applicant in the claim forms or to impugn the truth of those representations.22 The KLN1 documents 38 The position with respect to the KLN1 documents is different. Parliamentary privilege ‘does not protect things said or done outside [parliamentary] proceedings merely because they may be repeated in the course of Parliamentary proceedings’.23 In Szwarcbord & Anor v Gallop & Anor, Crispin J held:24 Privilege may be attracted by the retention of a document for a relevant purpose, but that is because the retention for such a purpose is itself an act forming part of the proceedings. The privilege thereby created does not attach to the document and any copies for all purposes. It applies only to the words used and acts done in the course of, or for purposes of or incidental to, the transaction of business of the Assembly including the retention of a document for a purpose of that kind. 39 Tabling a document in Parliament does not have the effect of also retroactively vesting all other occasions of publication of the document with privilege. In Szwarcbord, the document in question was a report by a Board of Inquiry. The plaintiffs sought to tender it in proceedings by which they were seeking declaratory relief in relation to the findings and recommendations made in the report. The Chief Minister of the Australian Capital Territory had retained a copy of the report for the purpose of tabling it in the Legislative Assembly. 40 Crispin J determined the claim of parliamentary privilege by application of s 16(2) of the Parliamentary Privileges Act. He held that there was no evidence that the specific copy sought to be tendered had been produced for purposes of or 21 Cornwall v Rowan & Ors (2004) 90 SASR 269 at [224]-[225]. 22 Prebble v Television New Zealand [1995] 1 AC 321 at 333–334. 23 Stewart v Ronalds (2009) 76 NSWLR 99 at [119] (Hodgson JA); Szwarcbord & Anor v Gallop & Anor (2002) 167 FLR 262 at 267 [22] (Crispin J). 24 Szwarcbord & Anor v Gallop & Anor (2002) 167 FLR 262 at 267 [22]. -- 15 of 19 -- [2023] SASCA 28 The Court 12 incidental to the transaction of business of the Assembly, although he accepted it was possible. On that basis, he concluded that privilege had not been established.25 41 In reaching this conclusion, Crispin J continued from the paragraph extracted above, in terms with which we respectfully agree:26 Hence, if a member obtains a document that has been prepared for some reason unrelated to the business of the Assembly but elects to retain it for such a purpose, s 16(3) would prevent the admission of any evidence of that retention or any subsequent use for such a purpose … it would also apply to any copies brought into existence for such a purpose. That is because the creation and use of the copies for such purposes would also be acts forming part of the proceedings of the parliament. However, privilege would not attach to copies of the document which were not prepared or used for such a purpose. It is for this reason that the tabling or retention of a copy of a newspaper can not prevent the continued circulation of the paper or the receipt in evidence of another copy. 42 In the present matter, for the reasons discussed briefly above, the evidence establishes that the Tabled Documents, being the copies of the claim forms printed by Corporate Services from the scanned copies held on the EDRMS, were created for the purpose of being tabled in Parliament. However, the evidence establishes that the KLN1 documents were not created for that purpose. 43 The fact that the claim forms related to a claim for an allowance by a member of Parliament does not affect this conclusion. In R v Chaytor & Ors,27 the defendants were charged with false accounting, in respect of allegedly dishonest claims for expenses and allowances made while they were serving members of Parliament. 44 Following the descriptive passage quoted above, Lord Phillips held:28 If this approach is adopted, the submission of claim forms for allowances and expenses does not qualify for the protection of privilege. Scrutiny of claims by the courts will have no adverse impact on the core or essential business of Parliament, it will not inhibit debate or freedom of speech. Indeed it will not inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties. The only thing that it will inhibit is the making of dishonest claims. 45 The immediate relevance of Chaytor, on which the magistrate in the present case relied, is that to tender in criminal proceedings allegedly falsified claim forms for a parliamentary allowance, in furtherance of a prosecution for a dishonesty offence said to be disclosed by those claim forms, would not question or impeach proceedings in Parliament. Earlier, Lord Phillips quoted, with approval, Burger CJ in United States v Brewster:29 25 Szwarcbord & Anor v Gallop & Anor (2002) 167 FLR 262 at 267 [24]. 26 Szwarcbord & Anor v Gallop & Anor (2002) 167 FLR 262 at 267 [22]. 27 [2011] 1 AC 684 at [39] (Lord Phillips). 28 R v Chaytor & Ors [2011] 1 AC 684 at [48]. 29 (1972) 408 US 501 at 524-525, quoted in R v Chaytor & Ors [2011] 1 AC 684 at [39]. -- 16 of 19 -- [2023] SASCA 28 The Court 13 As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence. 46 Chaytor did not concern the act of tabling claim documents. The applicant submitted it should be distinguished on that account. However, it contributes to the analysis of the KLN1 documents in that:  Chaytor stands for the proposition that by themselves, the KLN1 documents, which were not tabled, do not attract parliamentary privilege;  Swarczbord illustrates the accepted proposition that the retention of a copy of a document for the purpose of tabling in Parliament, and the tabling of that copy, does not mean that privilege will then attach to copies of the document which were not prepared or retained for that or an incidental purpose. That is, while the Tabled Documents, being the copies of the claim forms printed by Corporate Services from the scanned copies held on the EDRMS, may well be privileged, that does not retroactively confer privilege on the KLN1 documents, which were created earlier and retained for a different purpose. 47 The applicant submitted that Swarczbord was distinguishable in the circumstances of the present case. He argued that both the Tabled Documents and the KLN1 documents derived from a single point of origin, and that for all intents and purposes they were the same document. It was an essential step in his reasoning that from the time that the claim forms were submitted to Corporate Services, they were in the custody of a single entity, the Parliament. 48 The applicant accepted that without more, the reasoning in Chaytor would apply to deny recognition of parliamentary privilege. However, he submitted that once an administrative officer of the Parliament makes a copy of the document within the custody and control of Parliament, and that copy is tabled such that the privilege attaches to it, the situation is different. As we understood the argument, the ‘indivisibility’ of the Parliament, which continues to have custody and control of the document, means that the document that is tabled is necessarily the same document that was originally submitted to Corporate Services. 49 The applicant illustrated this argument. He submitted that if the actual claim form documents were tabled such as to attract parliamentary privilege, but an administrative officer happened to have made a copy, it would be a nonsense for the prosecution to attempt to tender at trial the copy that had been made fortuitously by the administrative officer. The document is within the control of the Parliament. When that is tabled, it would be capricious to say that a copy kept elsewhere within the Parliament could ‘circumnavigate the privilege’. -- 17 of 19 -- [2023] SASCA 28 The Court 14 50 This argument must be rejected. It relies on the proposition that because the Parliament is a ‘single entity’, it necessarily follows that the tabling of a document extends the privilege to all copies of that document within the custody and control of the Parliament, whatever the purpose of creation or retention of those other copies. It fails to engage with the principles of parliamentary privilege in a number of respects. 51 To say that the Parliament is a ‘single entity’ fails to engage with the accepted understanding of ‘proceedings in Parliament’. Taking s 16(2) as a descriptive illustration (and without needing to decide whether s 16(2) is declaratory of the scope of proceedings in Parliament as contemplated by article 9), the concept is concerned with words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee. 52 Where a document is created for the purpose of transacting the business of a House or of a committee, and a copy is then made for administrative purposes and stored in the Parliament’s records, that is one thing. It is not necessary to decide upon the circumstances in which such a copy would be privileged. The documents described above as the ‘Derived Documents’ fall into this category. 53 The situation is different where the document in contention was not created for the purposes of or incidental to, transacting the business of a House or of a committee, and is not a copy derived from such a document but nonetheless remains in the custody of the ‘Parliament’, in the sense of being kept in its administrative records. Chaytor establishes that such documents, which include the KLN1 documents are, without more, not privileged. 54 However, it is then necessary to consider whether, if the KLN1 documents do not attract privilege following the tabling of the Tabled Documents, this would be likely to impact adversely on the core or essential business of Parliament.30 55 The applicant’s argument that the act of tabling the Tabled Documents caused the KLN1 documents to attract the privilege failed to engage with this necessary inquiry. By describing the Parliament as a ‘single entity’, the applicant did not distinguish between the Houses of Parliament on the one hand, and the administrative services created to support the Parliament, on the other. The object of the protection of parliamentary privilege is the business of the Houses of Parliament. The privilege does not protect the business of the Parliament’s administrative services, except insofar as that business might, in a given case, be properly described as incidental to transacting the business of a House or of a committee. 56 The creation and storage of the KLN1 documents were not incidental to transacting the business of a House or of a committee. The applicant’s argument to the effect that the making of a copy for the purposes of tabling in a House, and 30 R v Chaytor & Ors [2011] 1 AC 684 at [47]. -- 18 of 19 -- [2023] SASCA 28 The Court 15 the subsequent tabling of that copy, renders the KLN1 documents privileged, fails to engage with the nature of the privilege. It requires casting a backward light over the original such as to alter the purpose for which the original was created. 57 It is of no consequence that the KLN1 documents remain in the custody of the administrative services of the Parliament. They were not, and have not somehow become, created or retained for the purpose of or incidental to the transacting of the business of a House or of a committee. 58 The applicant’s argument contends for a consequence that is foreign to the purposes of the privilege. As the magistrate observed, it would also extend the operation of the privilege to undermine the functions of the other arms of government. In the present case, the Speaker tabled the Tabled Documents. However, the logic of the applicant’s argument would mean that notwithstanding Chaytor, any member of Parliament who had dishonestly submitted false claim forms could manufacture protection from the risk of some future prosecution by routinely tabling the forms. 59 It would in no way further the ability of the House to debate freely the subject matter of the Tabled Documents if the privilege extended to the KLN1 documents. It would simply hinder the executive and the courts in the discharge of their own governmental functions with respect to conduct outside Parliament that is alleged to have been dishonest. Conclusion 60 It is not necessary to decide whether the Tabled Documents or any Derived Documents attract parliamentary privilege. This is an application for permission to appeal from a decision to refuse to stay criminal charges. The application depends on the proposition that all iterations of the claim forms to which the charges relate attract the privilege. Whatever view is taken of the Tabled Documents and any Derived Documents, the KLN1 documents do not attract the privilege. The magistrate was correct to refuse the stay on this basis. 61 It is also not necessary to determine the respondent’s Notice of Alternative Contention to the effect that even if all iterations of the claim form attracted the privilege, there remains sufficient evidence to sustain the charges. 62 The respondent did not oppose the grant of permission to appeal. In those circumstances, we grant permission to appeal but dismiss the appeal. We dismiss the Notice of Alternative Contention on the basis that it is unnecessary to determine. -- 19 of 19 --